Hay v. Bank of the State , 5 Ark. 250 ( 1843 )

By the Court,

Ringo, C. J.

Every principle of law involved by the proceedings and adjudication of the court below in this case, has been expressly ruled by this court against the plaintiff in error in cases heretofore decided.

The plea in abatement is clearly within the principles expressly adjudged by this Court in the case of Tucker et al. vs. The Real Estate Bank, 4 Ark. Rep. 431; and the plea of Greer within that held in the case of Mahony et al. vs. The Bank of the State, 4 Ark. Rep. 620. The judgment given against the plaintiff in error, upon the demurrer to his plea being sustained, for all of her costs in the suit then expended, was, in our opinion, irregular and improper, but cannot, upon éhe present writ of error, be revised, because it is a separate judgment against him, which is not properly before this Court for adjudication on the present writ of error, which is sued out jointly by himself and Greer, and embraces nothing but the final judgment, and such proceedings in the cause anterior thereto as affect its validity, which cannot possibly be the case in any view of the subject in respect to this judgment for costs. The final judgment is no way dependant upon it, whether it be right or wrong, legal or illegal; and therefore it is not a matter which can be legally assigned as error in this case.

The defendant in error having remitted in this Court the excess of damages and interest adjudged to her, as she might well do according to the principles asserted and the rule established in the case of Fulton, adm. of Holt, vs. Hunt, 3 Ark. Rep. 280, there is no error in the proceedings of the Circuit Court.

Judgment, as amended, affirmed.